Responding to an allegation of unauthorised tree felling

The first letter from a council about a felled tree is usually a request for information, not a charge. How you answer it shapes everything that follows, and the single worst response is a quick email explaining what happened. Cutting down a tree protected by a Tree Preservation Order without consent is a criminal offence under section 210 of the Town and Country Planning Act 1990, the fine on conviction is unlimited, and anything you write is evidence.

Take the letter seriously, answer it accurately and within the deadline, and get the facts established before you offer an explanation.

How allegations reach the council

Most come from neighbours, often within hours. Others come from the council's own tree officer noticing a change, from a ward member, or from an arboricultural contractor who declined the job and reported it.

What the council then has is a report and a gap in a canopy. What it needs, to prosecute, is proof that the tree was protected, that works were carried out, and that they were carried out without consent and without an exception applying. Each of those is capable of being wrong.

The council's usual first step is a notice under section 330 of the Town and Country Planning Act 1990 requiring the recipient to state their interest in the land and the name of anyone else with an interest, or a similar requisition asking who carried out the works. Failure to reply within the stated period, normally 21 days, is itself an offence, and so is knowingly giving false information. Reply, and reply on time.

That is different from being asked to explain yourself. A section 330 notice compels factual answers about interests in land. It does not require you to narrate the events, and a voluntary account written before you know the facts is very hard to withdraw later.

The offences and what they carry

Two offences sit in section 210.

The first covers cutting down, uprooting, wilfully destroying, or wilfully damaging, topping or lopping a protected tree in a manner likely to destroy it, in contravention of an order. This is the serious one, triable either way, with an unlimited fine on conviction. The court is required to have regard to any financial benefit that has accrued or is likely to accrue as a result of the offence, which is why a tree removed to improve a development plot attracts a different level of fine from one removed for light.

The second covers any other contravention of an order, such as pruning without consent where the work was not likely to destroy the tree. It is a summary offence with a lower maximum.

The same offences apply to trees in a conservation area. Section 211 requires six weeks written notice to the council before works to a tree over the size threshold, and carrying out the works without that notice is an offence dealt with in the same way.

A separate duty then follows. Under section 206, a landowner who removes a protected tree in contravention of an order must plant a replacement of appropriate size and species in the same place as soon as reasonably practicable. That duty attaches to the land and passes to later owners.

Where a defence actually lies

Ignorance of the order is not a defence. Nor is the fact that a contractor did the work, if you instructed or permitted it. The real defences are factual, and they are worth investigating properly before responding.

The tree was not protected. Check the order itself, not the council's summary. Common problems include a tree outside the mapped area, a tree not within the schedule where the order protects individually specified trees, an order that was never confirmed, and a tree that was already dead when the order was made.

An exception applied. The Town and Country Planning (Tree Preservation) (England) Regulations 2012 set out the exceptions, and the ones that matter in practice are:

• The tree was dead. Five working days' notice to the council is required before removal, except in an emergency.
• The tree presented an immediate risk of serious harm, with notice given to the council as soon as practicable after the works.
• The works were necessary to implement a full planning permission, which does not include an outline permission.
• The works were required to comply with a statutory obligation, or to prevent or abate a nuisance.
• The works were covered by a Forestry Commission felling licence, as discussed in our note on woodland felling licences.

Consent had been given. Check the correspondence, including any email from the tree officer, and any condition on an earlier consent that authorised the work.

You did not cause or permit it. A tenant, a neighbour or a utility contractor acting without your knowledge is a different matter, though the replacement duty under section 206 can still attach to you as landowner.

Responding to the request

A sequence that keeps options open:

1. Diarise the reply deadline the day the letter arrives.
2. Obtain the order and its plan and schedule from the council, together with the confirmation date.
3. Photograph the stump, the arisings and the site before anything is cleared. The stump is the evidence of condition and it disappears quickly.
4. Instruct an arboriculturist to inspect the stump and any retained material for decay, fungal fruiting bodies, cavities and previous failure, and to give an opinion on the tree's condition at the time of removal.
5. Collect the contractor's paperwork: the quotation, the method statement, any pre-works inspection, the invoice and any photographs they took.
6. Answer the section 330 notice with the factual information it requires, in writing, within the period.
7. Do not offer an explanation of why the tree came down until steps two to five are complete.

If the council invites you to an interview under caution, that is a criminal interview conducted under the Police and Criminal Evidence Act framework. Take legal advice before attending. You are entitled to be represented, and the caution means what it says.

Tree replacement notices and appeals

Where the duty to replace has not been complied with, the council can serve a tree replacement notice under section 207, requiring planting of a specified size and species in a specified place within a specified period. The notice has to be served within four years of the date on which the duty should have been complied with.

There is a right of appeal to the Secretary of State under section 208, and the grounds include that the replacement duty does not apply, that the requirements of the notice are unreasonable in their period or in what they require, that the planting is not required in the interests of amenity or in accordance with good forestry practice, and that the place specified is unsuitable.

An appeal is often the better route where the council has specified an over-large specimen or a position with no soil volume. Support it with arboricultural evidence rather than with assertion, and note that a notice and a prosecution can run in parallel: complying with one does not settle the other.

Evidence that helps a landowner

Two habits prevent the situation entirely. Commission a tree survey to BS 5837:2012 before any site work and check every tree against the council's order register and the national dataset. And specify pruning properly in writing, because a contractor given a vague instruction will exceed it, as our note on writing pruning specifications explains.

When to take advice

Take legal advice on the day you receive a section 330 notice, a caution letter, or any invitation to interview. Take arboricultural advice before you write anything about the tree's condition. Where a replacement notice is served, take both, because the appeal period is short and the grounds have to be pleaded properly.

Where the felling formed part of a development site, the replacement planting will usually end up in the landscaping scheme, and getting it into a coherent Landscape Strategy is easier than arguing about individual specimens later.

This is general guidance, not legal advice. Tree offences carry criminal liability and turn on the facts and the wording of the order, so take advice from a planning solicitor and a qualified arboriculturist before responding substantively to a council.

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